Opinion
2014-01-22
Tabitha YOUNG, appellant, v. David H. BROWN, et al., respondents.
Clark, Gagliardi & Miller, P.C., White Plains, N.Y. (Lawrence T. D'Aloise, Jr., Lucille A. Fontana, and Eddie Still of counsel), for appellant. Kaufman Borgeest & Ryan LLP, New York, N.Y. (Jacqueline Mandell and Dennis J. Dozis of counsel), for respondents David H. Brown, Hindsight Biblical Counseling, and Hindsight Ministries, Inc.
Clark, Gagliardi & Miller, P.C., White Plains, N.Y. (Lawrence T. D'Aloise, Jr., Lucille A. Fontana, and Eddie Still of counsel), for appellant. Kaufman Borgeest & Ryan LLP, New York, N.Y. (Jacqueline Mandell and Dennis J. Dozis of counsel), for respondents David H. Brown, Hindsight Biblical Counseling, and Hindsight Ministries, Inc.
Simon Lesser P.C., New York, N.Y. (Leonard F. Lesser of counsel), for respondent Trinity Presbyterian Church.
In an action, inter alia, to recover damages for negligence, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Adler, J.), entered April 17, 2012, as granted that branch of the motion of the defendants David H. Brown, Hindsight Biblical Counseling, and Hindsight Ministries, Inc., which was pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them, granted the motion of the defendant Trinity Presbyterian Church pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against it, and denied her cross motion pursuant to CPLR 3025(b) for leave to serve a second amended complaint.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the allegations in the complaint should be accepted as true, and the motion should be granted only if the facts as alleged do not fit within any cognizable legal theory ( see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Rietschel v. Maimonides Med. Ctr., 83 A.D.3d 810, 921 N.Y.S.2d 290; Peterec–Tolino v. Harap, 68 A.D.3d 1083, 1084, 892 N.Y.S.2d 154).
Here, the Supreme Court properly determined that the plaintiff failed to state a cause of action against the defendants David H. Brown, Hindsight Biblical Counseling, and Hindsight Ministries, Inc. (hereinafter collectively the Brown defendants), to recover damages for negligence and professional malpractice, based upon allegations regarding the Brown defendants having provided the plaintiff with biblical counseling ( see Langford v. Roman Catholic Diocese of Brooklyn, 271 A.D.2d 494, 495–496, 705 N.Y.S.2d 661; cf. Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 N.Y.3d 15, 21–22, 862 N.Y.S.2d 311, 892 N.E.2d 375; Rodrigues–Lytwyn v. Roman Catholic Diocese of Brooklyn, 79 A.D.3d 840, 841, 912 N.Y.S.2d 411; cf. also Dupree v. Giugliano, 87 A.D.3d 975, 929 N.Y.S.2d 305; Coopersmith v. Gold, 172 A.D.2d 982, 984, 568 N.Y.S.2d 250). Accordingly, the Supreme Court properly granted that branch of the Brown defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them.
Furthermore, the plaintiff failed to state a cause of action against the defendant Trinity Presbyterian Church to recover damages for negligent supervision ( see Doe v. Roman Catholic Diocese of Rochester, 12 N.Y.3d 764, 765–766, 879 N.Y.S.2d 805, 907 N.E.2d 683; Rodrigues–Lytwyn v. Roman Catholic Diocese of Brooklyn, 79 A.D.3d at 841, 912 N.Y.S.2d 411; Spielman v. Carrino, 77 A.D.3d 816, 818, 910 N.Y.S.2d 105). Accordingly, the Supreme Court properly granted the motion of the defendant Trinity Presbyterian Church pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against it.
The Supreme Court providently exercised its discretion in denying the plaintiff's cross motion for leave to serve a second amended complaint, since the proposed second amended complaint was palpably insufficient and patently devoid of merit ( see CPLR 3025[b]; Putnam County Sav. Bank v. Aditya, 91 A.D.3d 840, 841, 938 N.Y.S.2d 98; Ferrandino & Son, Inc. v. Wheaton Bldrs., Inc., LLC, 82 A.D.3d 1035, 1037, 920 N.Y.S.2d 123). BALKIN, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.